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THE common law of England has been called lex non scripta
Law and institu- as distinguished from the lex scripta, or statute
tions-                   law.    When we speak, however, of unwritten
law, it does not of course follow from this language, that
every law included in the list of laws so named, if always un-
written, did not originate in some will of a tribe or commu-
nity, expressed at some definite time and then imposing an
obligation on the people, or possibly in some will of a sover-
eign imposing obligation on his subjects. Such statutes or
laws, formally passed, may have been trusted to the memory
of judges without being reduced to writing, and they, as
judges now do, may have applied them or the principle con-
tained in them to analogous cases. Or the principle of the
law in one country may have been adopted without legislation
in another. In this way a law grew, as it does now, and the
best things in it may have come from just or equitable deci-
sions after the law was once enacted, without any knowledge
or memory on the part of the people of this extended signi-
fication. Law grew, just as words grow, while a nation con-
tinues to live.
But if a hx non scripta can be supposed to have in part
such a positive origin, we cannot justly say that all law so
originated. The farther back we run into the antiquities of
nations, we find laws made to a less and less degree. In*
small primitive societies this function of law-making was of
little use, because relations were quite fixed, and progress-
slow. Nor can we suppose that legislative foresight, when it;